Here’s a question some buddies and I have been throwing around that I thought our learned readership at CLR Forum might know something about. I know that Alasdair MacIntyre’s critical thesis in After Virtue has found some applications for and in law. That is, MacIntyre’s diagnosis of the unintelligibility and interminability of moral discourse not as proof that non-cognitivists are right but instead as evidence that we have lost the teleological foundations that made moral discourse and the ideas of true and false possible in the first place, the incapacity of rationalism to replace that Aristotelian foundation, and the resultant contemporary emotivism — some or all of this has found applications of one sort or another in legal academic writing with which I am familiar. Some of Steve Smith’s writing draws on the critical thesis in MacIntyre, for example.
What I am not sure about is whether the more positive thesis of After Virtue about social practices, goods internal to those practices, the contextualism of those goods and their intelligibility only within social practices, the mutability of the goods as the practices/traditions evolve, and the practices/traditions as sites within which the virtues are displayed — has anyone written about the law as such a social practice/tradition? Has anyone developed the contextual, situated social practice/tradition thesis in MacIntyre as an account of law?